Employers increasingly are finding federal courts to be receptive forums for the consideration of an employee’s retaliation claim. In Burlington Northern v. White, for instance, the Supreme Court held that an employer can retaliate within the meaning of Title VII with actions short of terminations and other ultimate employment actions. Last year, in Crawford v. Metro Government of Nashville, the Court ruled that an employee who was terminated after she answered questions during an employer’s internal investigation was protected under the anti-retaliatory provisions of Title VII.

The FMLA is no exception. In his blog, attorney Michael Davey effectively summarizes a recent FMLA and ADA lawsuit brought against Wal-Mart where the federal trial court refused to dismiss an FMLA retaliation claim where Wal-Mart declined to interview Kimberley Stoppi for a management position after she returned from FMLA leave. Stoppi v. Wal-Mart Transportation, LLC However, Stoppi provided compelling evidence that other employees who received interviews lacked the transportation experience that she had. In fact, one interviewee had worked in a dentist's office prior to working at Wal-Mart and another worked in a bingo hall. After the interviews, Wal-Mart decided not to fill the position at all.

Had she been allowed to interview for the position, Stoppi apparently was confident she would have hit B-I-N-G-O. Nevertheless, Stoppi sued Wal-Mart, alleging among other things that the company retaliated against her by refusing to interview her for the promotion simply because she took FMLA leave. When explaining its reasons for failing to interview Stoppi, Wal-Mart argued that the individuals interviewed for the job more fully met the qualifications for the position than she did. However, the court found that a jury might see it differently, particularly in light of the fact that Stoppi provided evidence that several candidates had less supervisory experience than she. As a result, the court allowed Stoppi to proceed with her FMLA retaliation claim.

Insights for Employers

  1. Don’t retaliate against employees because they have taken FMLA leave. Not ever. Never.
  2. Employers should carefully arrive at and articulate the qualifications for the position under consideration and compare each candidate—independent of FMLA leave and other protected leave they have taken—against these qualifications. Here, the outcome might have been different had the employer been able to distinguish the plaintiff from other candidates through objective, quantifiable criteria.